Easementary rights must be established by clear evidence of uninterrupted use for 20 years; mere convenience does not suffice for easement of necessity.

JUDGMENT :

URMILA JOSHI-PHALKE, J.

1. By this appeal, appellants have challenged judgment and decree passed in RCA No. 6/1994 by learned 2nd Ad Hoc Additional District Judge, Achalpur dated 29.9.2005 by which the appeal of respondents was allowed and the judgment and decree of the trial court to the extent of counter claim in respect of the injunction on user of JC door to go to the eastern service lane was set aside. It was further directed that the plaintiffs’ claim to restrain the defendants permanently from interfering with their right to repair their southern wall by going through the door JC is decreed. The defendants were permanently restrained from interfering the plaintiffs to use JC door to repair their southern wall.

2. Brief facts of the plaintiffs case are as under.

3. The plaintiff Nos.1 and 2 are brothers and they are owners of house bearing municipal No. 71, situated on nazul plot No. 127, sheet No. 19, in ward No. 8, Paratwada. The original owner of the said house property was their grandfather Ramdhin who purchased it by registered sale deed dated 28.7.1975 and reconstructed it in the same year. The house of the defendants is situated on south of their house. As per contentions of the plaintiffs, the wall between both the houses belongs to them. One Shankarlal Agrawal was initially tenant in the house of the defendants. In the October 1984, the defendants took possession of their house from the tenant. In December 1984, the defendants raised the height of the room by two feet by lifting the curb roof. While lifting the height of room, the defendants removed and refixed beams and rafters two feet above in the middle wall unauthorizedly. The defendants also scratched the middle wall from southern side and there are scratches on the wall inside north-south. The plaintiffs have incurred the expenses to repair the wall. As soon as the plaintiffs came to know about illegal and unauthorized act of the defendants, by issuing notice dated 2.1.1985 the defendants were called upon to maintain the status quo and also asked to repair the wall. Despite the service of notice on them, they neither repaired the wall nor maintained the status quo. It is further contended by the plaintiffs that there is a door on the east side of the middle wall which opened in the house of the defendants. The plaintiffs have right to use the door to go towards east to repair the southern side of the middle wall by entering into the defendants’ house. But, the defendants by notice reply called the plaintiffs to close the door. As per the plaintiffs, they have an easementary right by prescription as well as by way of necessity to use the door and, therefore, they preferred the suit for declaration that the middle wall belongs to them exclusively and they have right to use the eastern door in the middle wall by way of easementary right and also claimed the compensation towards the repair of the southern side wall.

4. The defendants contested the suit with contention that the plaintiffs have no easementary right to enter into the house of the defendants to repair the wall. In fact, no damage is caused to the middle wall. The middle wall is common wall. The defendants have admitted that they have obtained the possession in October 1994 and raised the height of roof by two feet and prayed for dismissal of the suit. The defendants have also claimed by way of counter claim that the door which opens in their house be closed permanently and the plaintiffs are not entitled to have door on the south east corner and sought mandatory injunction against the plaintiffs.

5. Considering the rival contentions of the parties, necessary issues were framed by the trial court. In support of the contentions, the plaintiffs examined as many as five witnesses namely PW1 Ramkrishna Sahastrabuddhe Exh.43, PW2 Bhikulal Ramdulare Gupta plaintiff himself vide Exh.55, PW3 Shankarlal Agrawal vide Exh.64 the tenant of the defendants, PW4 Ramratan Gupta vide Exh.65 and PW5 Sham Deshp